Plants won't pursue criminal charges against three DHHR employees

CHARLESTON, W.Va. -- Kanawha County Prosecuting Attorney Mark Plants announced Monday he will not pursue criminal charges against three Department of Health and Human Resources employees who allegedly interfered in the awarding of a lucrative department advertising and marketing contract.

"While there appears to have been violations of internal policy and the exercise of bad judgment, the three employees did not attempt to hide their actions and there is no evidence they intended to commit a crime," Plants said in a statement. "Because there is no criminal intent, there is insufficient evidence to prosecute any violation of criminal law."

Plants' announcement comes more than six months after acting DHHR Secretary Rocco Fucillo placed DHHR attorneys Susan Perry and Jennifer Taylor and communications director John Law on paid administrative leave for allegedly interfering in the awarding of the DHHR's advertising and marketing contract.

Perry and Taylor, who subsequently filed a whistleblower suit against Fucillo, earlier this month received another 30-day extension of their leave, through mid-February. Law, a 12-year DHHR employee, was fired without explanation, effective Jan. 23.

"I will leave any administrative remedies up to their employer, but this conduct doesn't rise to the criminal level," Plants stated. "The outcome of the bid itself was not compromised, and the law was ultimately followed in the award of the contract."

In conjunction with an investigation by DHHR Inspector General David Bishop, the prosecutor's office in September subpoenaed documents within DHHR offices regarding the bid evaluations for the DHHR advertising contract.

Plants' statement Monday indicates the inspector general's investigation is completed, and that all parties, including those suspected of wrongdoing, cooperated.

DHHR spokeswoman Marsha Dadisman issued a statement Monday evening, stating, "The DHHR appreciates the diligence of the office of the prosecuting attorney for its work in this matter. We understand the prosecuting attorney's office concluded that the investigation by the inspector general was thorough, complete, and independent. Because this is a personnel matter -- and is involved in litigation -- we cannot comment further."

At issue is whether Perry, Taylor and Law attempted to interfere with the awarding of the contract, which has a base value of $485,000 a year, but can be worth $4 million a year or more because numerous other state agencies "piggyback" on the contract for their advertising.

In their whistleblower suit, Perry and Taylor contend they were attempting to raise concerns over inconsistencies in the bid evaluation process. Ultimately, the DHHR awarded the contract to the highest of four bidders, Columbus, Ohio-based Fahlgren Mortine.

In the suit, Perry and Taylor argue that their concerns were heightened by an ongoing pattern of DHHR mishandling of previous bids, including a contract for a multimillion-dollar Medicaid computer system, where request for bids has had to be recalled and resubmitted three times, and where the current bid process is being challenged.

That mismanagement prompted an investigation by the state legislative auditor. That audit, released in August, concluded that DHHR lacks in-house expertise to oversee competitive bidding of contracts, and recommended that the DHHR's exemption from state purchasing regulations be withdrawn.

Walt Auvil, the attorney representing Perry and Taylor, said Plants' decision not to pursue criminal charges should be of benefit to their whistleblower suit.

Auvil said Monday he finds it inscrutable that the internal investigation has dragged on for more than six months.

"It's six months and two weeks and counting, and at the end of all that, the result of all this supposed investigation is basically nothing," he said.

"Whoever the quote-unquote people in charge are here -- what have they been doing?" Auvil commented.Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.